Okiri (Suing and being Sued as the Legal Administrator of the Estate Maurice Okiri Yongo) v Omune & another (Environment and Land Case 39 of 2019) [2026] KEELC 4424 (KLR)
The bottom line
#The Environment and Land Court in Migori set aside a 2021 ex-parte judgment in a land dispute because the estate had no valid administrator when the suit was filed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the proceedings and the ex-parte judgment rendered by the court on 24th March 2021 should be set aside
- 2.Who should bear the costs of the application
Key legal issues
#Capacity of the 2nd respondent to have been sued when the suit was filed
The court found that the grant issued to the 2nd respondent in 2017 had been revoked before the 1st respondent instituted her suit, so he had no capacity to represent the estate and lacked locus standi to be sued.
Neither party disclosed when the 2017 grant was revoked, but both affidavits, including paragraphs 9 and 10 of the 2nd respondent's affidavit, indicated it was revoked before the suit was filed. The court could not gloss over that admission. Revocation under section 76 extinguishes representation of the estate, so the 2nd respondent had no capacity to be sued for the estate at commencement of the suit.
Whether the ex-parte judgment of 24th March 2021 should be set aside under Order 12 rule 7
The judgment was set aside because the applicant, now a co-administrator, was never sued and was unaware of the suit and judgment, and the suit was commenced against a party without capacity.
The applicant explained she discovered the judgment only in December 2024 at the registry while pursuing succession, having been omitted from the earlier grant. The court found no delay in the application filed on 10th February 2025. Given that the applicant was an administrator never sued by the time judgment was rendered, and the suit was filed against a party whose grant had been revoked, the interests of justice required the judgment to be set aside.
Whether the applicant should be joined as a defendant or an interested party
The court admitted the applicant as an interested party, not a defendant, applying the Muruatetu criteria.
The court agreed with the 1st respondent that the applicant could not be joined as a defendant since the plaintiff determines whom to sue and she was never sued; she should have applied as an interested party. Applying the Muruatetu test, the court found she identified her personal interest and the prejudice from non-joinder, and exercised its discretion to admit her as an interested party in the interests of justice.
Legal principles established
#- Once a grant of representation is revoked under section 76 of the Law of Succession Act, the grant ceases to exist and the estate ceases to be represented; a person whose grant has been revoked has no capacity to represent or be sued for the estate.
- A party without locus standi can neither sue nor be sued.
- Order 12 rule 7 empowers the court, on application, to set aside or vary an ex-parte judgment or dismissal upon such terms as may be just.
Court orders
#- 1.The judgment of the court rendered on 24th March 2021 and any consequential orders are set aside
- 2.The applicant is admitted as an interested party rather than as a defendant
- 3.The applicant has 14 days to file her respective pleadings as an interested party and serve
- 4.The other parties have 14 days to reply to her pleadings from the date of service
- 5.The applicant will have 14 days to file a Reply to the responses by the other parties
- 6.The matter to be mentioned on 6th October 2026 for compliance with Order 11 of the Civil Procedure Rules, 2010
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 3A of the Civil Procedure Act and Orders 9 rule 9, 12 rule 7 and 36 rule 10 of the Civil Procedure Rules, 2010 (inherent power and setting aside of ex-parte judgments)
Relief refused
#Joinder of the applicant as a defendant
The applicant was never sued; she should have applied to be joined as an interested party and cannot compel the plaintiff to sue her
Costs
Costs of the application will be in the cause
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Once a grant of representation is revoked under section 76 of the law of Succession Act, the said grant ceases to exist and estate therefore ceases to be represented.
Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.
It is trite law that a party without locus standi can neither sue nor be sued.
This argument merits. The judgment is hereby set aside.
The applicant has 14 days to file her respective pleadings as an interested party and serve.
As for the costs of this application, they will be in the Cause.
Issues in the judgment
#Internal inconsistency on the date of confirmation of the 2nd respondent's grant - earlier stated as 28th January 2022 but later the court refers to the grant issued in 2017 being revoked in 2022 in a context implying the suit date
Typographical/confusing passage on parties - 'the 1 st applicant' used where the 1st respondent appears intended, and contradictory framing of who filed the suit
Citation of a judgment dated in the future relative to some events (In re Waiganjo dated 30 March 2026) while the ruling is dated 8 July 2026 - internally consistent but chronologically tight
The 2nd respondent's affidavit is described as deponing the grant 'issued to him in 2027' which is an evident typographical error for 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okiri (Suing and being Sued as the Legal Administrator of the Estate Maurice Okiri Yongo) v Omune & another (Environment and Land Case 39 of 2019) [2026] KEELC 4424 (KLR)", Case Analysis (2026). ELCOS 39 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4424/eng@2026-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.